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Thursday, September 30, 2010

Now that another one of those trials of the century that Los Angeles seems to enjoy about once a decade has concluded (I'm talking about the McCourt divorce trial of course), everyone wants to know who won. Technically, since the judge has not ruled yet, and still has 90 days to issue a decision, there is no winner yet. But the real answer is that neither side won, or perhaps that it doesn't really matter all that much which side prevails on the legal issue before the court: that issue being the meaning and enforceability of a document purporting to grant Frank McCourt sole ownership of the Dodgers.

How can I be so cynical as to suggest that it doesn't matter who wins? First, because there may be a number of ways for the judge in this case to split the difference so that neither side comes out the clear victor. Second, because of appeals. The parties have the ability to continue to litigate this case for years to come, regardless of which side wins at trial. But it is not clear that the business of baseball has time to wait for the results of all those appeals. Therefore, there will be pressure to resolve the ownership issue long before the legal process is finally concluded. Third, because of the parties' financial situation. Even if Frank retains ownership of the Dodgers, his other financial obligations, including of course to his ex-wife, may compel him to sell the team. If they are forced into joint custody over the boys in blue, sale becomes even more likely.

So what did the trial accomplish? I am not an expert on the legal issues--I only know what I read in the papers--but the main effect of the trial seems to have been to publicly humiliate both parties and tarnish their reputations. T.J. Simers summed it up in the LA Times sports pages (the Dodgers' season is long over, so all Dodgers fans can do is watch the trial) this morning:

"Frank's lawyers successfully drove home the point that Jamie is just not credible. Jamie's lawyers successfully drove home the point that Frank is just not credible. They've got that right."

Court-watchers have concluded that Jamie probably came out ahead at trial. That may be because Frank started out with what appeared to be a stronger legal position, while Jamie had the always difficult burden of proving that the document at issue was not enforceable or did not mean what it was thought to mean. She seems to have succeeded at least in muddying the waters considerably, and could succeed in getting the agreement tossed out entirely. Frank's case, on the other hand, might have been as strong as it ever was before the first word of testimony was uttered at trial, and if he loses, he may still be able to fall back on his interpretation of the documents and argue that nothing that was said at trial means anything.

Maybe it was necessary for Frank and Jamie to suffer through the cathartic experience of this public trial to bring them to a fair resolution of this dispute. Somehow, I doubt that. The real shame in this case, however, as I mentioned in an earlier post, is that not only have both parties to this dispute spent a lot of money only to emerge deeply damaged as a result of this trial, but they have also caused untold harm to an important civic institution. Both parties may now be forced to give up what they were ostensibly fighting over to salvage the team, and Dodgers fans would probably consider that justice.

How often does this sort of thing happen in real life? A lot more often than people think. Clients who approach me with a problem that potentially needs to be resolved in court are generally preoccupied with the merits of the dispute. Who is right and who is wrong? Which side's position is going to stand up at trial? My answers to those questions are usually filled with contingencies, and then I have to throw in some practical questions. How is the other side likely to approach a potential lawsuit? How much is at stake as compared to the amount that the case will cost to litigate? Once we start talking about those questions, the issue of who is right and who is wrong starts to recede in importance. I'm not saying that the merits of a case do not matter. The strength of each side's position is what drives the dispute, and often determines the value of the ultimate resolution, whether by settlement or verdict. What I'm saying is that procedural concerns are just as important as the merits, and also that trials do not always reach a nice, neat conclusion that vindicates the position of one side over the other.

I have tried some cases with a clear winner and loser: either the plaintiff walked away empty-handed, or the defendant was assessed a judgment. But I have also tried cases in which the outcome of the trial did not seem to accomplish very much at all. That can happen where the plaintiff wins the empty victory of an unenforceable judgment, or where the amount the plaintiff wins was less than the cost of litigation, or where the defendant prevails at what he considers an excessive cost, or where the result of trial is essentially a draw.

What will happen next in the McCourt case? They are going to try mediation again of course, the only place that gives them a chance of reaching a result better for both sides than the alternative of endless litigation.

Wednesday, September 29, 2010

Following up on a similar post on my political blog, I thought it might be appropriate, after doing this mediation site for about a year-and-a-half, to recognize some of my fellow mediation bloggers. One reason I started this site was because there didn't seem to be all that many blogs on mediation, so I thought I might be able to contribute to the discussion. Since I started, some have dropped out, and new sites have cropped up. Here is a list of some sites that have mostly been around longer than I have, and that I tend to turn to most often.

1. Settle it Now is a champion mediation blog in terms of sheer productivity. Victoria Pynchon's posts are also consistently interesting, and she is fun to argue with.

2. Diane Levin is responsible for Mediation Channel as well as a very comprehensive listing of ADR blogs. Diane's blog has been quiet for a couple of months. I'm hoping that is just a short hiatus.

3. ADR Prof Blog is put out by a group of law professors and is therefore a good source for what is going on in academia in the ADR field.

4. From across the pond, Amanda Bucklow has a good site called Mediation Times.

5. Peter Phillips started his Business Conflict Blog about the same time that I did, and offers a lot of insight into mediating business disputes.

6. Disputing is a high quality blog dealing mainly with arbitration and related issues, published by Karl Bayer and other attorneys in his office in Texas.

7. This site, Mediation's Place is still trying to figure out the place of mediation within or adjacent to our court system, and my own place in it as well. Since I made the list, of course I made the list.

8. Brains on Purpose is a unique site by Stephanie West Allen that combines neuroscience and conflict resolution.

9. Schau's Mediation Insights has been around for almost four years. Jan is a knowledgeable LA mediator who publishes about twice monthly.

10. Phyllis Pollack, another LA mediator, blogs regularly on current mediation law issues and her practice, on her PGP Mediation site.

Monday, September 27, 2010

The Los Angeles County Superior Court has developed a large mediation program that relies heavily on the provision of pro bono mediation services. Litigants have the choice of the pro bono panel, which allows them three hours of free mediation services, after which the mediator may charge for his or her time; or the party pay panel, which offers three hours at a reduced rate. The difference is that pro bono mediators are randomly assigned, while parties may choose their mediator from the pay panel. Pay panel mediators also tend to be more experienced, but parties are sometimes lucky enough to get assigned to an experienced mediator from the pro bono panel. From the point of view of mediators, the pro bono panel offers an opportunity to hone their skills, develop a reputation that can sometimes lead to more private mediations, and/or allow them to contribute pro bono services to the court system. Thus, the pro bono panel tends to attract people who are hoping to build a career in mediation, as well as established attorneys and others who just want the satisfaction of performing a public service.

Established mediators have often expressed frustration with the pro bono panel. Phyllis Pollack recently posted a piece complaining of parties and attorneys who abuse the privilege of the pro bono panel. Victoria Pynchon wrote a similar series of blog posts last month. And Jeff Kichaven published an article in the LA Daily Journal last month proposing that attorneys pledge not to use the pro bono panel in cases in which they are receiving fees for their services. I understand and sympathize with the frustration expressed by these experienced mediators (myself included) who are providing a valuable service that generally saves parties enormous amounts of money. We deserve to be compensated fairly for our time, and parties ought to get used to the idea that mediators deserve to be compensated as much as attorneys do. Of course there will always be cases where attorneys should consider working pro bono, and that applies just as strongly to mediators, but there are also a lot of cases where use of a pro bono mediator is unwarranted. It can be penny wise and pound foolish in many cases to use a pro bono mediator, if as a result the parties do not take the process as seriously and if for that reason the mediation does not advance or even impedes resolution of the dispute. In such cases, the parties would still be paying their own attorneys to attend a wasted mediation session, and may incur additional fees for continued litigation that might have been unnecessary if they had invested a little more time and money in the mediation process.

On the other hand, use of the pro bono panel is often justified, and many of the parties and litigants I see who are fortunate enough to be assigned to me as a sometimes pro bono mediator are highly appreciative of my services, and probably would not have chosen to mediate at all if they had no alternative but to pay the mediator.

Mediation itself is here to stay, and parties and attorneys will become more and more accustomed to seeing disputes resolved in mediation. They will develop more sophistication about the process, and should in more cases recognize the value of choosing experienced mediators and having to compensate them for their time. At the same time, this field is going to develop standards and practices and professional qualifications, and start imposing the same kinds of licensing and credentialing restrictions as other business and professions--whether accountants or lawyers or dentists or beauticians or house painters--have done. That means it will become harder for parties to obtain the services of a certified mediator without paying for those services. Those who do not wish to or cannot afford to pay for a mediator's services will either have to use an unlicensed or informal go-between to help settle their disputes, or they will have to do it themselves, just as people are free to paint their own house or draft their own will or even pull their own teeth.

I also think that one way the courts can help with providing quality mediation services to people who need them is hiring some more mediators on the court staff. Taxpayers already pay judges' salaries, and some of those judges are assigned full time to settling cases. Almost all the rest of the judges spend a considerable amount of time encouraging parties to settle or actually conducting settlement conferences. Taxpayers also foot the bill for the court personnel who currently administer the mediation program. It therefore makes sense for the courts to make available "free" mediation services, by salaried court personnel, for litigants deemed entitled to such assistance. Courts need to get used to the idea that they are already in the dispute resolution business as much as they are in the "justice" business, and that it is a worthwhile expenditure of public funds to support dispute resolution professionals, just as it is to provide judges and clerks and bailiffs to assist the public in resolving disputes. Meanwhile litigants who prefer a private mediator outside the court system should be free to avail themselves of the services of such individuals, just as litigants today can choose between having their case decided by a "free" judge, who is a paid state employee, or a private judge.

(photo of the complex case courthouse in mid-Wilshire from skateallcities skateboarding site, proving that courthouses can be viewed from many perspectives and can serve multiple functions)

Monday, September 20, 2010

I did some posts this week on my political blog, trying to understand why voters seem so angry this campaign season. After trotting out some of the usual suspects like our dysfunctional government, and the economy, I turned to the touchier subjects of intolerance, racism and xenophobia. We certainly have a lot of problems to deal with in our country right now, but my mind keeps returning to the question of why we need to react to those problems with anger and recrimination. Didn't we, less than two years ago, embrace the promise represented by the Obama campaign, of trying to approach our problems with a spirit of cooperativeness and inclusiveness? A majority of the country actually elected a candidate who appealed to us to get beyond red states and blue states, and instead remember that we are all part of the United States. How quickly we returned to partisan warfare.

In the world of private dispute resolution, we also find it hard to overcome our natural warlike instincts. While mediation is expanding into a more accepted and regular part of the litigation process, it has a long way to go to overtake more traditional forms of dispute resolution. I doubt the demand for mediation services will ever approach the demand for litigators. (The budget for the Department of Defense is more than ten times the State Department's budget, and that ratio is not likely to change any time soon either. People say they want peace, but we actually prefer to fight.) That's one reason I'm not yet ready to give up my trial practice. While most participants appreciate the cost savings of a settlement as compared to the enormous wastefulness of litigation, they do not always embrace or perhaps even understand the concept of a mediated resolution of disputes. Our instinct is to fight and try to win, not to try to empathize with the other side's point of view and reach an accommodation.

People often approach the mediation process itself with a combative mentality. Trial lawyers might see mediation as another step in the process of litigation that can be "gamed" and "won." Clients might be reluctant to give up the fight with the other side, and look at the mediation as just another battle in that fight. So participants in a mediation often try to impress the other side with the strength of their case. Or they might try to scare the other side with the threat of continued costly litigation. They might even refuse to speak to the other side. They might bluster their way through negotiations with unreasonable offers or demands. All these techniques, by the way, have some legitimate uses in a negotiation, and I have used them all myself, as advocate and as mediator. But these kinds of aggressive negotiation tactics are not really what mediation is about. The essence of mediation is listening to the other side with the goal of actually trying to understand their point of view. That doesn't imply that you have to agree with them, or concede anything to them. You just have to listen and try to understand where they are coming from. When people do that, and when--just as importantly--they believe that the other side has heard and understood their own concerns, they often find a way of satisfying at least some of the other side's interests, without giving up any of their own. How rarely we seem to do that, in politics, in our relationships with others, or even in mediation itself.

Saturday, September 11, 2010

In his press conference on September 10, 2010, President Obama commented on the re-opening of peace talks between Israelis and Palestinians as follows:

And one of the goals I think that I’ve set for myself and for my team is to make sure that President Abbas and Prime Minister Netanyahu start thinking about how can they help the other succeed, as opposed to how do they figure out a way for the other to fail. Because if they’re going to be successful in bringing about what they now agree is the best course of action for their people, the only way they’re going to succeed is if they are seeing the world through the other person’s eyes. And that requires a personal relationship and building trust. Hopefully, these meetings will help do that. (transcript)

This is classic mediator language. I'm guessing most people follow the President's points about creating empathy, building relationships, and establishing trust. People generally understand that that is how diplomacy and negotiation work. The part that may seem most counter-intuitive, however, is the part about helping the other side succeed rather than trying to "win" the negotiation. If diplomacy is seen as war by other means, parties generally view their goal as accomplishing as many of their objectives as possible. They have a hard time grasping how helping the other side achieve their goals advances their interests. Isn't that just another way of giving in?

Yet if we look at history, we can see numerous examples of parties who struck too hard a bargain paying a price later on. The onerous terms imposed on Germany after World War I, for example, may have led to World War II. In the Middle East, Israel needs to worry about whether a potential Palestinian state is viable, and Palestinians need to worry about whether Israel is secure. Otherwise any peace agreement may fall apart in a few years.

OK, but do these goals for international diplomacy apply in the more mundane world of private negotiation and dispute resolution? Both corporate and litigation attorneys representing clients in these contexts probably start off thinking it is almost unethical to try to accommodate the other side's interests. Yet it may not be possible to make a workable deal for one's client, or achieve a settlement of a lawsuit, without at least considering the needs of the other side. Parties entering into business relationships learn that they need to make sure that the deal is fair, and sometimes talk about leaving something on the table for the other party, otherwise they are going to create resentment and future problems. But even parties negotiating settlements in which they expect to have no future relationship with the other side--the world in which I more often operate--should probably give more thought to how the deal looks from the other side of the table. If they don't think about how to "sell" the deal to the other side during the negotiations, they may not even achieve a settlement in the first place. To do that, they must be able to persuade the other side that the agreement satisfies the other side's goals and concerns better than the alternative. That means parties to any kind of negotiation need to understand the other side's goals and concerns as well as they can. And they at least need to be able to make a credible case to the other side that their offer is better for the other side than the alternative. Otherwise they can have no realistic expectation that the other side will accept it.

Another point worth noting from the quote at the top of this post, is the president's remark that both Abbas and Netanyahu already agree on the best course of action. In other words, as is true in many settlement negotiations, the general outline of a settlement, and even most of the details, are already well known. (See my comments on this point in a post on my political blog.) Both leaders have endorsed the concept of a two state solution, and a large majority of both Israelis and Palestinians favor the concept. What needs to happen to achieve an agreement is for the leaders to overcome resistance to peace within their own constituencies, and to make the necessary leap of faith and hope. The process is not unlike settlement negotiations in many private disputes, in which the biggest obstacles to agreement are the parties' own reluctance to give up the fight, their mistrust of one another, and their need to answer to other parties (e.g., their board members, their spouse) who resist agreement.

Friday, September 10, 2010

I spent the day in the jury room at LA Superior Court downtown today, doing my one day of service. The chairs were comfortable, the TVs were (thankfully) off for some reason, the wifi was free, and the court personnel were friendly and almost entertaining. The court makes the process about as pleasant it could be for an experience that feels like being institutionalized for almost 8 hours. And the best part was that I did not get called to a single courtroom all day, so was excused without even being subjected to voir dire. A large proportion of my fellow jurors also escaped without being asked to serve. This reminded me that the beauty of jury trial sometimes is not the jury trial itself, but the fact that jury trial hardly ever seems to happen. That's certainly the beauty of it from the jurors' point of view, but it can also look that way to the litigants.

A lot of ADR people tout the benefits of mediation or arbitration by comparing these procedures to the horrors of litigation. I'm usually with them when we're talking about the horrors of discovery and motions, but I part company when it comes to jury trial. I think we should be proud that we are pretty much the only country that retains the jury for civil litigation, and that we have enshrined the right to jury trial in civil cases in the Constitution. Like the people with bumper stickers saying they would not give up their Second Amendment rights until they are pried from their cold, dead fingers, I say we should feel just as strongly about our Seventh Amendment rights. But in addition to taking pride that we are a democratic enough nation to submit private legal disputes to ordinary citizens for decision, I also value the right to trial by jury as a settlement tool. The thing that many ADR proponents forget when comparing the virtues of simplified procedures like arbitration to the complicated processes required to submit a case to the jury (the jury fees! the voir dire questions! the jury instructions! the side bars! the rules of evidence! the theatrical opening and closing statements!) is that the jury trial in most cases never actually happens. But the prospect of jury trial looms large in everyone's minds, and helps induce and shape a settlement. From the trial lawyer's point of view, it's not so much that we enjoy trying cases to a jury more than presenting them to an arbitrator or discussing them with a mediator (though we usually do). The point is rather that the right to a jury trial is a big stick that a trial lawyer never wants to give up. It is our clients' possession of their precious rights to a jury trial and an appeal that helps achieve a settlement. And if a party gives up its rights too early, by signing an arbitration agreement for example, what happens is that they are more likely to end up in a full-blown hearing with an unpredictable outcome, rather than a settlement, over which the client has some control.
In arbitration, it is precisely because the procedures are simplified, and perhaps even more so because the arbitrator is generally happy to accommodate everyone's convenience in scheduling a hearing, that a hearing is much more likely to take place. In court, however, cases settle more often when courts stick to firm trial dates, and force the parties to prepare extensive witness and exhibit lists, voir dire questions, and jury instructions. Partly for those reasons, it is increasingly rare that cases go to trial. Nowadays, when a case is filed in court, the parties expect that it is going to get sent out to mediation at the first case management conference, and if it doesn't settle there, then it is probably still going to settle somewhere down the line. The odds that any particular case is going to a jury are pretty close to nil. And yet one of the main reasons for that is that the parties continue to insist on their right to trial by jury. I would not expect parties to give up that valuable right until their cold, tired fingers are wrapped around the pen they use to sign the settlement agreement.

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